Archive for the ‘Dangerous Pictures Act’ Category

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nothing to hide The Adam Smith Institute has just released a new paper by Nicholas Cowen of Kings College London: Nothing to Hide: The case against the ban on extreme pornography. In it, Cowen makes a robust case against the current prohibition on acts that are legal to perform–and yet not to record–show it to be expensive, dangerous, and illiberal.

The executive summary of the paper reads:

  • The ban on possession of extreme pornography was introduced in 2009 and extended in 2015. The law, as drafted, bans depictions of some sex acts that can be conducted safely and consensually between adults, with a specific risk of prosecution posed to LGBT minorities.
  • The Crown Prosecution Service reports more than a thousand offences prosecuted each year, implying significant enforcement costs that could be deployed effectively elsewhere.
  • A significant minority of the British population enjoy sexually aggressive fantasy scenarios but do not pose a specific risk of committing violent or sexual offences.
  • Access to pornography has increased dramatically in recent years, yet social harms imputed to pornography (especially violence against women) have reduced moderately but significantly.
  • While some survey evidence claims a correlation between individual use of pornography and sexual aggression, econometric evidence suggests this is not a causal relationship and that, if anything, increased access to pornography can reduce measurable social harms.
  • The ban itself represents a potential risk to political integrity. Like the ban on homosexuality in much of the 20th century, prohibitions on private sexual conduct can be used to silence, blackmail and corrupt individuals in positions of authority and responsibility.
  • There are better policies for reducing violence against women in the dimensions of criminal justice, education and economic reform.
  • The prevailing free speech doctrine in the United States shows that it is realistically possible to simultaneously tackle damaging forms of expression and maintain strong protections for innocuous forms.

…Read the full paper Nothing to Hide briefing paper [pdf] from adamsmith-private.squarespace.com

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arms of the british governmentjpg logoThe extension of the Dangerous Pictures Act to include the pornographic depiction of rape or non consensual penetration has come into force.The Criminal Injustice and Courts Act 2015 amends the Criminal Justice and Immigration Act 2008 to add the depiction of rape to the list of content already banned.

The relevant section defining the new category of porn that is illegal to posses is:

37 Possession of pornographic images of rape and assault by penetration

(1) Part 5 of the Criminal Justice and Immigration Act 2008 is amended as follows.

(2) In section 63 (possession of extreme pornographic images)—

(a) after subsection (5) insert—

“(5A) In relation to possession of an image in England and Wales, an “extreme image” is an image which—

(a) falls within subsection (7) or (7A), and
(b) is grossly offensive, disgusting or otherwise of an obscene character.”,

(c) after subsection (7) insert—

“(7A) An image falls within this subsection if it portrays, in an explicit and realistic way, either of the following—

(a) an act which involves the non-consensual penetration of a person’s vagina, anus or mouth by another with the other person’s penis, or
(b) an act which involves the non-consensual sexual penetration of a person’s vagina or anus by another with a part of the other person’s body or anything else,
and a reasonable person looking at the image would think that the persons were real.

(7B) For the purposes of subsection (7A)—

(a) penetration is a continuing act from entry to withdrawal;
(b) “vagina” includes vulva.”

Also people who share sexual images without consent can be jailed for up to two years under the new law that came into effect in the UK on 13th April 2015. The Crown Prosecution Service said:

The law covers images that show the genitals but also anything that a reasonable person would consider to be sexual, so this could be a picture of someone who is engaged in sexual behaviour or posing in a sexually provocative way.

It is an offence for a person to disclose a private sexual photograph or film if the disclosure is made (a) without the consent of an individual who appears in the photograph or film, and (b) with the intention of causing that individual distress.

Read more UK Government Watch at MelonFarmers.co.uk

Houses of Parliament The new clause extending the Dangerous Pictures Act to cover rape porn has passed through the House of Lords. The next step is the Ping Pong stage where the House of Commons debates House of Lords amendments which do noteffect the Dangerous Pictures clauses. This stage will occur on 1st December 2014.The existing Dangerous Pictures Act may be summarised:

Criminal Justice and Immigration Act 2008. Section 63 Possession of extreme pornographic images:

It is an offence for a person to be in possession of an extreme pornographic image.

An extreme pornographic image is an image which meets all of the following three definitions

  1. is pornographic , ie it is of such a nature that it must reasonably be assumed to have been produced solely or principally for the purpose of sexual arousal.
  2. is grossly offensive, disgusting or otherwise of an obscene character.
  3. it portrays, in an explicit and realistic way, any of the following—
  • (a) an act which threatens a person’s life,
  • (b) an act which results, or is likely to result, in serious injury to a person’s anus, breasts or genitals,
  • (c) an act which involves sexual interference with a human corpse, or
  • (d) a person performing an act of intercourse or oral sex with an animal (whether dead or alive), and a reasonable person looking at the image would think that any such person or animal was real.

The Criminal Justice and Courts Bill will extend the list. The list of image types above, ie life threatening act, serious injury, necrophilia, or bestiality is extended by:

37 Possession of pornographic images of rape and assault by penetration

(7A) An image falls within this subsection if it portrays, in an explicit and realistic way, either of the following—

(a) an act which involves the non-consensual penetration of a person’s vagina, anus or mouth by another with the other person’s penis, or

(b) an act which involves the non-consensual sexual penetration of a person’s vagina or anus by another with a part of the other person’s body or anything else,

and a reasonable person looking at the image would think that 30the persons were real.

(7B) For the purposes of subsection (7A)—

(a) penetration is a continuing act from entry to withdrawal;

(b) vagina includes vulva.

The new clause will apply only in England and Wales. Scotland has its own version of the Dangerous Pictures Act that already includes rape porn. Northern Ireland seems to have been omitted, maybe it will enact its own version later.

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Old Bailey The law penalising possession of extreme pornography faces judicial review by a defendant previously charged with having a video of woman having sex with a tiger.

It was revealed in Court that the tiger was actually a man in a tiger-skin costume.

Yet the former defendant, Andrew Holland, of Wrexham, North Wales, suffered significant disruption to his life and widespread public ridicule.

Solicitor Myles Jackman at Hodge Jones & Allen LLP acting on behalf of Mr Holland, said:

Mr Holland does not want others to go through the ordeal that he has faced. Mr Holland wants to ensure that others are not prosecuted unnecessarily in the manner that he was. He remains subject to the risk of further criminal charges in the event that he is in possession of similar joke images in the future.

Consequently Backlash have written to the Prime Minister, and HJA have written to Alison Saunders, the Director of Public Prosecutions asking her to review the implementation of this law: Section 63 of the Criminal Justice and Immigration Act 2008.

Something has gone badly wrong when Parliament were told there would be thirty cases a year yet there have been thousands of costly prosecutions emphasised Backlash Chair Hazel Eraclaeous.

If this review is not forthcoming, the law will be challenged by way of judicial review in the Administrative Court of the High Court.

Jon Fuller, spokesperson for Backlash, said:

This law threatens anyone with a sex life they want to keep private. It threatens ordinary members of the public who exchange dirty jokes by phone and over the internet. Potentially criminalizing millions of people is a disproportionate consequence of a law not based on harm and with no clear benefit.

Letter to the Prime Minister from Backlash

backlash logo Dear Prime Minister

S63(7) of the Criminal Justice and Immigration Act 2008 Prospective Judicial Review in the Administrative Court of the High Court: Pre-Action Protocol Letter

In the years since S63(7) of the Criminal Justice and Immigration Act 2008 was enacted there have been over 5,500 prosecutions for possession offences. Prior to the introduction of the legislation Ministers said there would merely be a handful of cases each year, and the Regulatory Impact Assessment predicted just 30 per annum.

Of great concern is that over the five years since enactment of the legislation the public, law enforcement agencies and the judiciary remain either oblivious or uncertain as to the precise meaning of at least two, and possibly all four, categories of the legislation. The Simon Walsh trial showed that CPS had sought to widen the meaning of Section 63(7)(b), seeking to prosecute for possession of images that depicted unconventional but not dangerous behaviour. The Andrew Holland ( Tiger porn ) case (Section 63(7)(d)) showed that harmless but crude jokes could also result in prosecution.

While both of these cases and others resulted in acquittal, it is unacceptable that the legal profession remains uncertain as to what types of material may get members of the public into trouble. There is emphatic evidence that many lawyers have advised people to plead guilty to possession offences to avoid the cost involved in trial, despite subsequent examination of the facts revealing that no offence had been committed.

The brutal reality is that lives are being turned upside down, careers destroyed and worse. In the light of the extreme nature of the penalties upon conviction, inclusion on the sex offenders register, lengthy period of incarceration and a heavy fine, it is wholly unacceptable that the public is denied an unequivocal, precise and detailed statement of that which is legal and that illegal to possess. If it really is impossible for the executive to provide clarity, then legislators must repeal the sections that cause the greatest difficulty (S63(7)(a) and(b).

Today, Hodge Jones & Allen LLP, acting on behalf of Andrew Holland, has written to The Director of Public Prosecutions explaining that the case against Mr Holland breached his human rights for three reasons.

1. That the term extreme pornography is insufficiently clearly defined in S63 CJIA 2008. It is not clear from the wording and accompanying case law how a potential defendant would be able to understand its scope and foresee the consequence of his/her actions;

2. There is insufficient guidance from the DPP as to when offences under S63 will be prosecuted; and

3. The offence is a disproportionate means of achieving the legislation’s intended aims.

Hodge Jones & Allen LLP have asked that the Secretary of State for the Home Department carries out a Human Rights Impact Assessment in relation to S63 CJIA 2008. In the event that the section fails the Human Rights Impact Assessment it is requested that this be confirmed in writing so that proceedings can be issued by way of judicial review by the Claimant who can then seek a Declaration of Incompatibility by way of a Consent Order. This will allow the Secretary of State for the Home Department to repeal Section 63 of the Criminal Justice & Immigration Act 2008 by use of the fast-track procedure under Section 10 of the Human Rights Act 1998.

I appeal to you to intervene to ensure that common sense and justice prevail. The harm being caused by S63(7) CJIA 2008 now greatly exceeds any perceived benefits.

Yours faithfully

Hazel Eracleous Chair, Backlash

Are vague laws allowing police to ride roughshod over legal standards?

See  article from  politics.co.uk by Jane Fae

The extreme porn law has been the government’s preferred means of dealing with online smut for ten years. It was always an accident waiting to happen. For five years, government appears to have gotten away with it, but today’s threat, by solicitors Hodge Allen & Jones to take the law to judicial review if the director of public prosecutions does not explain once and for all what is and is not an offence could be the final straw.

…Read the full article

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See article from politics.co.uk By Diana Johnson MP, Dan Jarvis MP and Helen Jones MP

labour logothe current and soon to be extended prohibitions on ‘extreme’ porn are inevitably not enough for New Labour. Shadow ministers, Diana Johnson MP, Dan Jarvis MP and Helen Jones MP want more:

A year after the prime minister’s announcement we have Clause 16 of the criminal justice and courts bill which will add realistic depictions of rape to the list of banned forms of pornography. While this is a welcome step, we need to be clear that this falls a long way short of equating offline and online restrictions. The government’s proposal will not ban violent pornography that doesn’t include penetration (and it’s important to remember we’re only talking about hardcore porn, not normal films, documentaries, or art). Nor will the government’s plans ban videos where the actress is portrayed as being a child or even depictions of rape which a normal, non-aroused, individual would not find realistic.

This means that hardcore porn showing a woman being raped at gunpoint –crying and protesting throughout — could avoid the ban if it was badly acted (and, let’s face it, isn’t all porn badly acted?). It would also mean that a video of a woman bound and gagged while being assaulted would not be banned unless it also showed penetration, regardless of how realistic it seemed. Nor would it do anything about the increasing number of videos portraying underage sex. These are pornographic videos featuring women over-18 who look far younger.

Normally these women will be very small, totally flat-chested and have all traces of pubic hair removed. Their immaturity is emphasised by clothes associated with pre-teens and childlike behaviour and speech. These girls are intended to look pre-pubescent. This is often highlighted by pairing them with male actors in their 50s or 60s who they will have sex with. It looks just like child abuse but it’s perfectly legal and readily accessible from Google.

Banning such content would not be about criminalising porn-viewers, but it would be about preventing easy access to material which normalises sexual violence and abuse. Just as internet companies have acted to make it harder to access child abuse, they need to do the same for extreme porn. Politicians can set the agenda on this.

..Read the full article

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See caan.org.uk (Consenting Adult Action Network)

Please distribute this notice as widely as possible

CAAN logo On 5 February the government introduced a Bill to Parliament that will extend S63(7) CJIA 2008 to cover the possession of pornography that depicts rape. Unless the proposed legislation is dropped or amended it may have greater implications for the general public than the first four categories that were originally criminalised. This is because material that depicts rape can be difficult to define. It is believed that it was for this reason that the offence was not included after the original public consultation in 2005.

However, in 2010 the Scottish Parliament introduced its own possession offence legislation (S42 CJ&L(S)A 2010) which included a category that depicts rape. In the light of this, and recent demands from many feminist and religious groups, that material that depicts rape be made an offence to possess, the government has brought forward new legislation.

Many CAAN members will be appalled that there really does exist some material that features real rape being committed and this is occasionally shared by exceptionally nasty people. But the publication and sharing of such material is already a criminal offence. Many of us have no sympathy for those who possess extremely brutal and callous depictions of rape, even those where models have consented to appear as victims , but the current legislation is sloppy, it is poorly drafted and will impact upon relatively soft bondage and domination themed material. The legislation will also include anything that involves penetration with any object. So, if you were to possess an image of a submissive man, gagged, in bondage, with a butt plug being inserted, how could you prove that this was not rape? It could well be the case that the lucky man involved is having the best day of his life, but his facial expression might be interpreted by police as pain and the gag as proof that there was no consent to the act.

Nearly a third of the UK population (British Sexual Fantasy Research Project: 2007), fantasise about types of forced sex, often involving bondage, gags and invariably a dark dungeon. There is a huge amount of porn that caters for this demand, but anything without a BBFC certificate will be very dangerous to view/possess.

CAAN is doing everything we can to secure a sensible amendment to the legislation to protect those into bondage, submission and/or domination. We are also keen to protect people from prosecution for possession of material that features consensual non-consent but we fear this will be difficult. To understand more about the theme of consensual non-consent please read this article .

Working with the 4 other campaigns (Backlash, Campaign Against Censorship, Sex & Censorship and the Sexual Freedom Coalition) we have warned MPs and peers of the dangers of this legislation, explaining the potential for thousands of harmless people to have their lives destroyed. The government has pointed to the experience in Scotland and notes that it is believed there has only been one conviction for possession of material that depicts rape. However the government also predicted that S63(7) CJIA 2008 would only result in a handful of convictions but the reality was very different, with over 1,000 people charged with offences per annum. In the year 2012/13 1,348 people were charged under S63(7) for possession of the first four categories of extreme porn. By criminalising possession of rape material, a category which will include some sexually explicit bondage and entirely consensual material, a category that will include material in which millions of people have an interest, it is likely that prosecutions will soar.

Let there be no doubt that we are in engaged in war on two fronts. The state is determined to seize control over the internet and is equally determined to marginalise the lives of those who are into even the mildest forms of BDSM. Evidence is also mounting that police investigations and prosecutions are disproportionately being directed at the LGBT community. As a consequence we fear that the new legislation poses a serious threat to minority groups and have adopted the stance that if anything depicts a real rape, where there is no consent, that cannot be tolerated; but anything that is consensual should not be criminalised. Finding a watertight definition or dividing line between the various different categories of material that exist is impossible and so we oppose the creation of this new category.

Please write to your MP and explain why this is an exceptionally dangerous piece of legislation. Please also write to members of the House of Lords. This step is also important because we believe it is more likely that this part of the legislation is more likely to be scrutinised in the Lords than in the Commons.

If you have any other suggestions or can offer any assistance please get in touch: info@caan.org.uk

The Criminal Justice and Courts Bill (HC Bill 169) was introduced to Parliament on 5 February. Here is a hyperlink

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See Parliamentary transcript from theyworkforyou.com

House of Commons logoCriminal Justice and Courts Bill
2nd Reading Debate. 24th February 2014

The extension of the Dangerous Pictures Act to cover simulated depictions of non consensual sex passed 2nd reading with little debate, just MPs queuing up to say a few lines to welcome the new law:

Chris Grayling (The Lord Chancellor and Secretary of State for Justice ; Epsom and Ewell, Conservative):

The final provisions in part 1 deliver on a commitment that is important to me and the Prime Minister. The Bill will make it a criminal offence to possess pornography that depicts real or simulated rape. I am sure that both Houses will share my view that such images are wholly unacceptable and that it is right to close this gap in the law.

Sadiq Khan (Shadow Lord Chancellor and Shadow Secretary of State for Justice; Tooting, Labour)

We welcome clause 16, which bans the possession of extreme pornographic images depicting rape. A number of victim groups and experts have called for that change, and the Government and the Justice Secretary should be commended for listening to the evidence.

Elfyn Llwyd (PC Westminster Leader; Dwyfor Meirionnydd, Plaid Cymru)

My final point on part 1 concerns the new offence introduced in clause 16 that criminalises the possession of pornographic materials depicting rape and non-consensual sexual penetration. I truly applaud the Government’s efforts in this regard to minimise the use and dissemination of extreme pornographic materials, and particularly the work they are doing to minimise the opportunities for children to come into contact with this filth. In my view, however, there can be no benefit to society or to the individuals involved if persons convicted of sex offences are left languishing in prison without treatment or, worse, released into the community

Bob Neill (Bromley and Chislehurst, Conservative)

I welcome the changes in relation to rape. Pornographic depiction of rape does seem an obvious matter to deal with—Rape Crisis South London in my constituency has done a lot of work on it—and I am glad that that has been recognised. I think that my hon. Friend the Member for Ealing Central and Acton would agree with me that there may still be gaps in the adequacy of sentencing for other sexual offences, particularly in relation to videos and DVDs of various kinds—we might be able to look at that in due course—but the change is a valuable step forward that we should all welcome.

Andy Slaughter (Shadow Minister (Justice); Hammersmith, Labour)

We support the ban on the possession of extreme pornographic images depicting rape and other non-consensual sexual penetration. That is a welcome victory for campaign groups such as Rape Crisis South London and the End Violence Against Women Coalition.